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Hawai’i Council to Appeal Court Ruling that Strikes Down GE Restrictions

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Submitted by Food Democracy Now on January 13, 2015 - 11:43pm

Hawai’i County plans to appeal a federal judge’s ruling invalidating a 2013 county law restricting genetically engineered (GE) crops on the island. The County Council voted 5-4 in December to appeal the ruling after the judge ruled last November that Hawai’i County cannot enforce a law restricting genetically engineered crops because it is preempted by state law. The ruling follows a similar federal court decision in August 2014 that overrules a Kauai ordinance requiring annual reporting of genetically engineered organisms.

U.S. Magistrate Judge Barry Kurren’s order is similar to his earlier decision invalidating Kauai County’s law on pesticides and GE crops. Judge Kurren invalidated the county law, Hawai`i County Ordinance 13-121, in a Nov. 27, 2014 order, saying state law preempts county law on the issue. He said lawmakers intended the state to have broad oversight of agricultural issues in Hawai’i. The November 2014 decision concludes that state “preemption” of the county ordinance is implied by state plant laws, despite the fact none of them mention GE crops or were intended to regulate them. The court refused a request to send the state law question to the Hawai’i Supreme Court for a decision. Finally, the court rejected the chemical companies’ argument that county and state regulation of commercialized GE crops is prohibited by federal law, but concludes that federal law does prohibit regulation of some, but not all, experimental plantings.

A month later, the County Council voted 5-4 to appeal the November 2014 ruling, citing concerns for local farmers and a reluctance to enter what could be lengthy litigation. Kohala Councilwoman Margaret Wille, who authored the original bill limiting GE organisms, said it is an important decision affecting home rule.

Citing public health and environmental concerns, Ordinance 13-121 (previously Bill 113) passed the County Council with large public support. The ordinance, passed by the County Council 6-3 in November 2013, bans growing GE crops in open-air conditions, and makes exceptions for papaya and corn already growing on the island, as well as scientific study in greenhouses and other enclosed settings. The ordinance banned the growing of new GE crops on the island. It also included a $1,000 per day fine for violations. A lawsuit was filed in June 2014 by several Big Island farmers and flower growers, along with a national trade organization representing the biotech industry, challenging the ordinance.

Kauai is also appealing a similar ruling made by Judge Kurren invalidating a Kauai County law regulating GE crops and pesticide use, while residents of Maui County passed a ballot initiative to halt GE crop production until public safety tests are conducted. That initiative is also being challenged by the biotech industry in court.

Additional background on the fight for increased protections on the Hawaiian Islands, including testimony Beyond Pesticides provided in support of Kauai’s Bill 2491, can be found here. For more information on the hazards that continue to be associated with the growth of GE agriculture, see Beyond PesticidesGenetic Engineering webpage.